Reliance General Insurance ... vs Kommula Shanthamma Shantha,
2023 Latest Caselaw 1119 Tel

                              1                                  RRN,J
                                                  MACMA No.3555 of 2014


     THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

                    M.A.C.M.A.No.3555 OF 2014

JUDGMENT:

This appeal is filed by the appellant/Insurance Company

under Section 173 of the Motor Vehicles Act, aggrieved by the order

and decree, dated 30.11.2012, passed in M.V.O.P.No.258 of 2011 on

the file of the Motor Accident Claims Tribunal-cum-V Additional

District Judge, Warangal (for short "the Tribunal").

2. Brief facts of the case are that respondents No.1 to 4 filed a

claim petition under Section 166 (1) (c) of the Motor Vehicles Act,

claiming compensation of Rs.23,75,000/- on account of the death of

the deceased Kommula Harish (hereinafter referred to as "deceased")

in the accident. He worked as A.P.S.P. Constable in 4th battalion,

APSP, Mamnoor, and used to draw Rs.23,912/- per month.

Respondents No.1 and 2 are parents, respondent No.3 is the brother

and respondent No.4 is the elder sister of the deceased. On

05.03.2011, the deceased went to Jakaram Village to attend the first

birthday celebration of his friend's son. To attend the same, three

persons namely Kathi Suresh, Bharath and Suresh were also

attended the celebration. After completion of the function, the

deceased in order to go to duty along with Suresh was returning on 2 RRN,J M.A.C.M.A.No.3555 of 2014

his vehicle driven by him. Kathi Suresh and his friend Bharath

were following the deceased in another Vehicle. When they reached

near Balaji Nursing Home, Mallampally, at about 20.00 hours, the

driver of a DCM Lorry bearing No.AP-25T-5250 came in opposite

direction in a rash and negligent manner lost control over it and

dashed the vehicle of the deceased, due to which, the deceased died

on the spot and the pillion rider sustained injuries. The said

accident was witnessed by Kathi Suresh and his friend Bharath,

who were following the deceased, and immediately shifted them to

MGM Hospital in 108 Ambulance. Due to the sudden and untimely

death of the deceased, all the petitioners were put to shock, mental

agony and lost the only earning member of the family. Hence the

claim petition.

4. The appellant and respondent No.5 filed their respective

counters denying all the averments of the petition, manner of the

accident, age, avocation, earning capacity, involvement, negligence

of DCM lorry driver, and the very existence of the Insurance policy is

disputed and called for strict proof of the same. Hence, they prayed

for the dismissal of the petition.

5. To prove their case, the respondents No.1 to 4 examined

PWs.1 to 3 and got marked Ex.A1 to A5 and Exs.X1 to X3. On 3 RRN,J M.A.C.M.A.No.3555 of 2014

behalf of the appellant and respondent No.5, RWs 1 and 2 were

examined and got marked Ex.B1 to B7.

6. After considering the oral and documentary evidence

available on record, the Tribunal allowed the O.P. in part awarding

a sum of Rs.21,65,534/- towards compensation with interest at 6%

per annum, to be paid by the appellant and respondent No.5 jointly

and severally. Aggrieved by the said Award, the Insurance

Company filed the present appeal.

7. Heard both sides and perused the record.

8. Learned counsel for the appellant/Insurance Company

vehemently contended that the appellant deserves to be exonerated

from the liability as there was no valid insurance policy between the

appellant and respondent No.1 as on the date of the accident. This

is so, because the cheque issued by respondent No.5 to the

appellant towards payment of premium, was dishonoured and in

proof of the same, Ex.B2 and B3 were marked. Consequently, the

appellant also issued letters intimating the cancellation of the policy

to the Road Transport Authority and also respondent No.5 vide

Ex.B4 and B5. He further contended that the very insurance policy

stands cancelled and the Tribunal ought not to have made the 4 RRN,J M.A.C.M.A.No.3555 of 2014

appellant liable for payment of compensation. Hence, prayed to

allow the appeal.

9. On the other hand, learned counsel for respondents No.1 to

4/claimants contended that the Tribunal was justified in passing

the impugned order by fixing liability even on the liability. He

further submitted that the compensation amount deserves to be

enhanced as the Tribunal erroneously considered the multiplier "13"

instead of "18" and did not award future prospects at 50% on the

income of the deceased. Accordingly, prayed to dismiss the appeal

by enhancing the compensation.

10. A careful perusal of the impugned order would reveal that

the appellant failed to satisfy the Tribunal that intimation was given

to respondent No.5/owner of the vehicle and to the R.T.A. with

regard to the alleged cancellation of insurance policy. The Tribunal

observed that the cheque which was filed as Ex.B1 was not proved

that it was issued by respondent No.5 to the appellant for the

purpose of payment of premium. The Tribunal also took note of the

fact that Ex.B1/cheque for Rs.9,706/- whereas the premium as per

cover-note bears the amount of Rs.9,698/- and it is the version of

respondent No.5 that the premium was paid by way of cash to the 5 RRN,J M.A.C.M.A.No.3555 of 2014

agent of the appellant Insurance Company, which is accepted by the

Tribunal. More importantly, the appellant failed to file postal

receipts/acknowledgement card to prove that the cancellation of the

insurance policy was intimated to respondent No.5. As such, it can

be concluded that the Tribunal was justified in passing the

impugned order holding the appellant liable to pay compensation

along with respondent No.5.

11. This Court would now deal with the quantum of the

awarded compensation. Respondents No.1 to 4 were granted

Rs.21,65,534/- and the same is interfered with in the following

manner with respect to the appropriate multiplier to be applied and

future prospects on the earnings of the deceased, in view of the

decisions of the Hon'ble Supreme Court in National Insurance

Company Limited vs. Pranay Sethi and others1 and Sarla

Verma Vs. Delhi Transport Corporation2:

Head Amount arrived at by Amount arrived at by the Tribunal this Court

Salary of deceased Rs.22,096/- p.m. Rs.22,096/- p.m.

Annual income after Rs.1,32,576/- Rs.1,32,576/-

deduction 50% as deceased (Rs.22,096 x 12 - 50%) (Rs.22,096 x 12 - 50%) was a bachelor

Future prospects Rs.39,772/- Rs.66,288/- (50% to (30% was considered) be taken as per

1 2017 ACJ 2700

2009 ACJ 1208(SC) 6 RRN,J M.A.C.M.A.No.3555 of 2014

Pranay Sethi supra)

Age Multiplier "13" (Mother's age "17" (As per Sarla taken as per Trilok Verma supra) Chandra)

Loss of dependency Rs.22,40,534/- Rs.33,80,688/-

                                 (1,72,348/- x 13)      (Rs.1,98,864/- x 17)

        Loss of Estate             Rs.15,000/-            Rs.16,500/-
                                                      (Rs.15,000/- + 10% as
                                                      per Pranay Sethi)
      Funeral Expenses             Rs.10,000/-            Rs.16,500/-
                                                      (Rs.15,000/- + 10% as
                                                      per Pranay Sethi)

  Loss of Filial Consortium             Nil               Rs.80,000/-
                                                      (Rs.40,000/- to each
                                                      respondents No.1 and
                                                      2 as per Nanu Ram
                                                      alias Chuhru Ram)

 Deduction in view of receipt                  Rs.1,00,000/-
     of death benefits
            Total                Rs.21,65,534/-       Rs.33,93,688/-

12. Accordingly, the compensation amount deserves to be

enhanced from Rs.21,65,534/- to Rs.33,93,688/-.

13. Learned Counsel for the appellant/Insurance Company

at the time of the hearing contended that the present appeal

is filed by the Insurance Company and at worst, the same is

to be dismissed, but enhancement of compensation cannot be

done in the absence of cross-objections or a separate appeal

by the claimants. However, this court is relying upon the

decision of Hon'ble Supreme Court in Ranjana Prakash Vs 7 RRN,J M.A.C.M.A.No.3555 of 2014

Divisional Manager3. A careful reading of the said decision

would reveal that an Appellate Court is enabled/empowered

to pass any order which ought to have been passed by the

trial Court even if the claimant had not filed any appeal or

cross-objection and the Appellate Court is vested with the

duty to do complete justice to the parties. As such, no

irregularity would arise in the event the awarded

compensation is enhanced.

14. In the result, the M.A.C.M.A. filed by the

appellant/Insurance Company is hereby dismissed. However,

the total compensation calculated and directed to be paid by

the appellant/Insurance Company and respondent No.5 to

respondents No.1 and 2 is hereby increased from

Rs.21,65,534 to Rs.33,93,688/- (Rupees Thirty three Lakh,

ninety three thousand, six hundred and eighty eight only)

with interest at the rate of 6% p.a. from the date of petition till

the date of realization. The compensation amount shall be

apportioned among the respondents/claimants in the same

proportion as directed to be apportioned by the Tribunal. The

appellant/Insurance Company and respondent No.5 are

Civil Appeal No.6110 of 2011 decided on 29.07.2011 8 RRN,J M.A.C.M.A.No.3555 of 2014

directed to deposit the above said amount with interest and

costs after deducting the amount, if any, deposited earlier,

within two months from the date of receipt of a copy of this

judgment. The respondents/claimants are directed to pay the

deficit Court fee on the enhanced compensation amount

within two months from the date of copy of the receipt of the

judgment. There shall be no order as to costs.

As a sequel thereto, miscellaneous applications, if any,

pending in this appeal, shall stand closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO, J

10th day of March, 2023

BDR